Themis Advocate - August 2020

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The mission of Themis Advocates Group is to provide the most skilled, aggressive and cost-efficient
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Themis EPL Practice Webinar - Back to the Future: Routine v. Revolution
Thursday, Aug. 27 at 2:00 p.m. ET

Join Hansen, Mazurczak, Milano and Darling for open discussion about HR and employment liability issues. Topics will include return to work issues, remote working, review and amendment of workplace policies, what you can and cannot ask your employees, and mitigating potential liabilities as employers adjust to a “new normal.”  

•    Heidi Darling, Claims Manager, Group Claims - Executive Risk, Beazley
•    Sarah E. Hansen, Esq., Partner, Burden, Hafner & Hansen, LLC
•    Michael J. Mazurczak (Maz), Esq., Member/Equity Partner, Melick & Porter LLP
•    Teresa Milano, Esq., Vice President, Management Liability 

"By failing to prepare, you are preparing to fail." - Benjamin Franklin


Joe Pappalardo and Tom Dover Practicing 40 Years 


We congratulate Partners Joe Pappalardo and Tom Dover on celebrating 40 years with Gallagher Sharp! Joe began his career at the firm on June 3rd, 1980, and he has since become one of the leading defense lawyers in the trucking industry. Tom started at Gallagher Sharp on June 9, 1980, and during his tenure has become a well-regarded railroad defense lawyer. Tom served as the Firm’s Managing Partner from 2009 to 2015, and currently leads the Transportation Practice Group. Sustained excellence has been key to Gallagher Sharp’s history of success, and few have contributed more to that success than Joe and Tom. Learn more
Source: Gallagher Sharp, LLC

Attorney Chris Begeman Selected as Arizona Association of Defense President

The legal team of Righi Fitch Law Group have an exciting announcement: Attorney-Partner Chris Begeman has been selected to be the President of the Arizona Association of Defense Counsel (AADC). Three years ago, Chris was elected to a part of the AADC Executive Council while also being on its Board of Directors for a decade. This achievement has allowed him to join Rick Righi and Beth Fitch, who have each been Presidents of the AADC before.

The Arizona Association of Defense Counsel is a nonprofit organization dedicated to the preservation of social justice by monitoring and influencing the state’s legal system in a way that promotes fairness for all parties. It is entirely comprised of defense attorneys who mostly practice civil defense litigation. As a highly experienced civil defense attorney for professional liability, construction litigation, insurance coverage, and product liability cases, Attorney Begeman is a shoo-in for the AADC President position.  Learn more
Source: Righi Fitch Law Group

Perrier & Lacoste Expands to Lafayette

Perrier & Lacoste is pleased to announce the continued growth of their firm with the newest addition to their team, Norman “Skeet” Anseman, and the opening of their second office in Louisiana.  Perrier & Lacoste is committed to providing business savvy results and prompt responsiveness for their partnering clients and having Skeet as local counsel in their new Lafayette office will allow Perrier & Lacoste to better serve their clients throughout Louisiana, as well as across Mississippi from their offices in Gulfport and Jackson.  Learn more
Source: Perrier & Lacoste, LLC

Tort Reform Louisiana House Bill 57 

On July 13th Louisiana Governor John Bell Edwards signed HB 57, Louisiana’s Tort Reform legislation, into law. The law, which goes into effect on January 1, 2021 and applies to causes of action arising after that date, covers the following topics:

1. Lowering the jury verdict threshold to $10,000
2. Excluding the existence of insurance coverage from the jury
3. Limiting medical expenses to the amount actually paid with the court awarding the claimant 40% of the difference between the amount billed and the amount paid provided the award is not unreasonable
4. Repealing the statute that prevented evidence of plaintiff’s failure to wear a seat belt to prove comparative fault.

Previously a jury trial was only authorized when the amount in controversy exceeded $50,000. The new law reduces the threshold for a jury trial to $10,000. Under the new law if a plaintiff stipulates or otherwise judicially admits that the amount in controversy exceeds $10,000 but is less than $50,000, a party requesting a jury trial must provide a cash deposit in the amount of $5,000. Previously the jury bond was fixed by the court and due no later than 60 days prior to trial. Exceptions may need to be filed prior to answering to determine the amount in controversy where the petition does not specify that the amount in controversy exceeds $10,000 but is less than $50,000. Learn more
Source: Perrier & Lacoste, LLC

Attorney Brian LeBlanc Discusses Supreme Court's Recent Expansion
of Title VII Protection to LGBTQ Employees

In the U.S. Supreme Court’s landmark decision of Bostock v. Clayton County, Georgia, the Court held that an employer who fires an individual because they are gay or transgender violates Title VII of the Civil Rights Act of 1964. In that 6-3 decision published on June 15, 2020, the Court decided three cases, Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. The Court considered the question whether Title VII’s prohibition of workplace discrimination because of sex includes discrimination based on homosexuality or transgender status. The Court ruled that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Learn more
Source: Melick & Porter, LLP

Negligent Hiring Practices Not Enough to Impose Liability on
Employer for Employee's Criminal Assault

In Ledet v. Mills Vans Lines, et al., the Appeals Court, in affirming a Superior Court’s summary judgement decision, declined to find an employer liable for an employee’s criminal assault because there was no evidence that the employer’s negligent hiring was the proximate cause of the attack.

The defendant hired Robert Koonz in June 2011 as a “helper” without conducting a background check or drug screen. Koonz had an extensive criminal history, including convictions for inciting violence and threatening domestic violence. Koonz also did not have a driver’s license due to various motor vehicle-related convictions. Additionally, Koonz admitted to abusing drugs and alcohol at the time. Mills did not conduct background checks on its helpers despite a written agency agreement with an international motor carrier that required it to do so. Learn more
Source: Melick & Porter, LLP

First Circuit Finds that Employee's Request for Accommodations for Her Disability
Was "Too Little, Too Late" to Avoid Termination

A recent First Circuit Court of Appeals ruling affirmed a federal court’s ruling that the Americans with Disabilities Act does not protect a disabled employee’s misconduct.

In Trahan v. Wayfair Maine, LLC, the plaintiff was diagnosed with post traumatic stress disorder (PTSD) in 2010. She was hired as a service consultant in defendant’s Maine call center in August 2017. She did not disclose her PTSD diagnosis or that she suffered from acute PTSD episodes when she was hired. The defendant company’s General Rules of Conduct required that all employees act professionally and stated that offending employees could be discharged for unprofessional interactions with coworkers. While in training, the plaintiff and two coworkers were involved in an incident where the plaintiff called her coworkers inappropriate names, threw her headset, and slammed down her phone while at her workstation. The plaintiff met with her manager following the incident where she did not dispute the facts. She also requested to be moved to a different desk or team to minimize her interactions with the coworkers. The plaintiff did not report that she had PTSD or that the incident triggered a PTSD episode.
Learn more
Source: Melick & Porter, LLC

Inadequate Medical Care Under the Eighth and Fourteenth Amendments:
A Distinction Without a Difference

Individuals detained by the government are guaranteed certain, minimal protections by the U.S. Constitution. Those protections vary, however, depending on the nature of their detention. Pretrial detainees, for instance, are guaranteed adequate medical care under the Fourteenth Amendment’s Due Process Clause. Collins v. Al-Shami, 851 F.3d 727, 731 (7th Cir. 2017). If convicted, however, prisoners are ensured adequate medical care by the Eighth Amendment’s prohibition against the “unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Formerly, a claim that a state actor had violated either guarantee to adequate medical care was adjudicated under the same deliberate indifference standard. See, e.g., Collins, 851 F.3d at 731. Regardless of the applicable amendment, the standard was identical. Learn more
Source: Cassiday Schade LLP

Georgia Supreme Court Affirms Assumption of Risk Charge in Malpractice Case
Health and Regulation Update

The Georgia Supreme Court has held there was enough evidence to support a charge of assumption of the risk in a medical malpractice case. Plaintiff claimed he fainted and fell out of a deer stand while hunting five days after heart surgery. Plaintiff and his wife sued his cardiologist, claiming he was given too much medication, which caused him to faint. A trial, the jury was charged on assumption of risk and the jury returned a defense verdict. The Court of Appeals reversed. The Supreme Court granted certiorari and held that there was enough evidence to charge the jury. Learn more
Source: Copeland, Stair, Kingma & Lovell, LLP

Attorney Gerarde and Howd & Ludorf Win CT Supreme Court Fatal Police Pursuit Case

The Connecticut Supreme Court issued its decision yesterday in Borelli v. Renaldi (Seymour Police Department). The defense of this case was managed by Attorney Tom Gerarde and Howd & Ludorf, L.L.C., a law firm that is part of the Themis Advocates Group. Attorney Gerarde argued to the Connecticut Supreme Court last year on behalf of the defendant, Officer Renaldi.

The lawsuit stemmed from a police pursuit that ended in fatal injuries to a passenger in the pursued vehicle. The driver fleeing from the police lost control of his vehicle during the pursuit and crashed, killing one of the passengers. The surviving family members of the deceased tried to sue for damages and argued that the high-speed police pursuit was unnecessarily dangerous given that the suspect had been pulled over for vehicle lighting violations. Learn more

Source: Howd & Lundorf, LLC

Melick & Porter Partners Bill Keville, Mike Bryne, and Chris George Use
Motion to Dismiss to Eliminate Risk and Exposure

Rule 12 motions to dismiss are challenging. The expense is not warranted in most cases, but used wisely, a Rule 12 motion can eliminate risk and exposure quickly and decisively. McCusker v. Kennefick was a wrongful death action arising from the tragic death of a 3 year old guest who wandered away from a holiday gathering at the defendants’ home and drowned on neighboring property. Melick & Porter’s team of Bill Keville, Mike Byrne and Chris George filed a motion to dismiss in lieu of an answer. The Superior Court allowed the motion, and the plaintiff appealed. The Appeals Court recently affirmed the judgment. The Court agreed with M&P that the plaintiff could not prevail because the defendants did not owe the minor guest a duty of care, either as social hosts or because they had entered into a custodial or other special relationship with the child that might support the imposition of such a duty. Learn more
Source: Melick & Porter, LLP

On an Issue of First Impression, CMP Persuades the Federal Court that
Short Stature, Alone,
is Not a Disability Under the ADA

CMP attorneys T. Kelly May and H. Cannon Lawley successfully obtained dismissal of a plaintiff’s Americans with Disability Act (“ADA”) claims alleging that her height was a qualifying disability. The 4’6” plaintiff was sent by a temporary employment agency to fill an assembly line position for the defendant automotive component part manufacturer. The plaintiff alleged that she was unable to do the job because the assembly line work surface was too high for her to reach. Because the defendant perceived that plaintiff’s height presented safety and ergonomic issues in her being assigned to work on the assembly line, and there were no alternative positions available, the defendant declined to retain her services and notified the employment agency that plaintiff was no longer needed. Learn more
Source: Clark May Price Lawley Duncan Paul LLC

Is My Arbitration Clause Enforceable?

Maryland legislative policy favors the enforcement of arbitration and mediation agreements. Despite the fact that arbitration and mediation agreements are favored, these clauses and agreements still must adhere to the general contract principles established in Maryland. [This means arbitration clauses are subject to standard contract defenses.] Unfortunately, typographical errors and ambiguous language could lead to an otherwise valid arbitration and mediation agreement being invalidated by the court. Learn more
Source: DeCaro, Doran, Siciliano, Gallagher & DeBlasis, LLP

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